At Penpoint
- The judgement came within a context
The verdict in General Musharraf’s high treason case was perhaps inevitable. It did not cover the 1999 coup because that had already been validated, but the ruling on his sacking of Iftikhar Muhammad Chaudhry as Chief Justice, and the imposition of emergency, could probably have been nothing else. What was the court supposed to do? Acquit him?
However, the sentence of death then included a proviso that has drawn much obloquy on the court’s chairman, Mr Justice Waqar Seth, Chief Justice of the Peshawar High Court. The provision was that if General Musharraf died abroad, his corpse was to be hung in D-Chowk. One emotion that is clearly reflected is abhorrence for the act. A High Court Chief Justice has gone to the extent of expressing this sentiment.
It also reflects the recognition that the penal system does not provide for adequate punishment. After all, the death sentence would be equally applicable to someone who abetted a murder when the victim too thirsted after the murderer’s blood, and Javed Iqbal, hanged after confessing to the murders of 1000 homeless boys whom he had first assaulted. His punishment, it was suggested, should be execution and the dissolution of his corpse in acid, the way he had disposed of his victims. The view of punishment as a form of revenge obviously applies whenever there is any desecration of a corpse. In a death sentence, the purpose of deterrence exists, though there can be no reform, which is supposed to be another purpose of punishment.
It should be realised that the death sentence is sufficient deterrence, and there is no need to do anything with the corpse, something which echoes how England dealt with Oliver Cromwell’s body. Cromwell imposed what is the UK’s only experience of military rule, known as the Rule of the Major Generals, because the UK was divided into 10 districts from August 1655 to January1657, each headed by a major-general. The real reason his corpse was dragged out of its grave and hanged, was that he had the head chopped off of King Charles I, the father of the desecrator, Charles II, who was restored in 1660 after Cromwell died in 1658. Musharraf had not beheaded any king.
It seems that the civilian executive and legislative have given up, as the accusers of Imran Khan that he is selected, seem more concerned that they have not been selected, while the legislators are elected only if the military wants. The judiciary is thus the only pillar of the state still civilian and committed to constitutional rule
It seems to be the same vengeful spirit informing the government’s decision to send a reference against Chief Justice Seth to the Supreme Judicial Council. Whether any judge in future would like to give a judgement, knowing that it could lead to SJC proceedings, is doubtful. It should be remembered that the judge presently facing proceedings before the SJC, Mr Justice Qazi Faez Isa of the Supreme Court, also authored a judgement, in the Faizabad dharna, critical of military institutions. Even if he escapes conviction by the SJC, he will have gone through the agony of the proceedings.
The sentence on General Musharraf will not be executed if he does not return. If his body is not repatriated, Chief Justice Seth’s decision, even the grisly part, will remain unexecuted. However, the sentence is a deterrent. Military men like the law, and if the case law is established that coups will not lead to automatic validation, they will not be inclined to carry one out.
However, the attempt by the defence to raise the issue of his abettors is a little short-sighted. The case did not deal with a military coup per se, but with that part which saw him attempt to bring the judiciary to heel. How he imposed an emergency, without the PM’s advice, and then used that declaration to place 15 Supreme Court and 56 high court judges under house arrest. Apart from the impropriety of sacking judges without reference to the Supreme Judicial Council, little distinguished this from the imposition of martial law. In this trial, none of General Musharraf’s abettors were even questioned, and he applied for the Prime Minister, the Law Minister and the new Chief Justice to be included.
From the point of view of future coupmakers, that is worrisome, for while the coupmaker is clearly liable, the abettors too are liable, down to the troops occupying PM House. The defence of obeying orders remains untested, though used during the Nuremberg trials, of Nazi leaders for war crimes and crimes against humanity, who said they had been obeying orders, and the person issuing the orders, Hitler, was now dead. That defence, known as the Nuremberg defence, was rejected, and sentences of death and life imprisonment were handed out by the Nuremberg Tribunal hearing the case. That was a victors’ court trying losers.
The problem is that any special court trying anyone and his abettors for a coup or coup attempt is not made by the winners of a war, but the result of political circumstances. Even the imposition of martial law itself is an internal political act. The recent investigation by the Supreme Court into the tenure of the Army Chief should be seen in that context.
The Supreme Court is attempting to ensure the supremacy of the Constitution. The reaction of the Army to General Musharraf’s sentence, including the hostile statement of the DG ISPR and the visit by the current COAS to SSG headquarters, carries the hint of accusing the judiciary of hostility towards the Army. That raises shadows of the old accusation of treason.
Is the superior judiciary tainted by treason? Does the attempt to bring actions involving the military (such as a service chief’s tenure) under the Constitution involve treason? It must not be forgotten that any regulation of extensions may act to limit military interventions. Under the last two martial laws, the COAS had extended his tenure as President by a simple notification. If the law prevents him from doing so, any intervening COAS would try to limit the Martial Law to within his tenure.
The judgement did not occur without context. A former COAS and coupmaker was sentenced to death very soon after the sitting COAS did not get an extension because of a court intervention. The military has always tried (successfully so far) to remain a law unto itself, internally accountable, not liable to the sort of control by politicians that has seen all Indian service appointments above the rank of full colonel or equivalent (not just promotions, but postings as well) made by the Appointments Committee of the Cabinet.
The judiciary has also done its best to insulate itself from politicians’ control, with appointments vetted by a bipartisan parliamentary committee, and thus not monopolised by the political government as before. Now, it seems, it is not trying to establish control over the state, so much as move beyond its position as one of the three pillars of the civilian state, to make itself the arbiter of the entire state, including the military component.
It almost seems as if there is a replay of the Curzon-Kitchener controversy, when Lord Kitchener, the Commander-in-Chief of the Army in India, objected to the dual control of the Viceroy, Lord Curzon, which he exercised through the Military Member of the Viceroy’s Council, back in 1902. The affair only ended when Curzon resigned. The military has always opposed dual control, and did not want any interference in its affairs, not just because it is the only institution left unscathed, but because it violates the principle of unity of command, which means that a superior’s orders must be obeyed, legal or not. It seems that the civilian executive and legislative have given up, as the accusers of Imran Khan that he is selected, seem more concerned that they have not been selected, while the legislators are elected only if the military wants. The judiciary is thus the only pillar of the state still civilian and committed to constitutional rule.
